U.S. Alone in Rejecting Paris as COP23 Concludes, ABA SEER, ACOEL, Maryland Clinic Summit (by Bob Percival)

The last two months have been so busy for me that I have not been able to find time to update the blog. During the 23rd Conference of the Parties (COP-23) to the UN Framework Convention on Climate Change, which was held in Bonn in November, both Syria and Nicaragua signed the Paris Agreement, leaving the U.S. as the only country in the world not to accept the agreement.  Although the Obama administration signed the Paris Agreement and deposited its instrument of acceptance to it, President Donald Trump on June 1, 2017 announced his intention to withdraw the U.S. from the agreement.  Under the terms of the Paris Agreement, this withdrawal cannot become effective until November 4, 2020, the day after the next U.S. presidential election.

On October 19th I spoke on a panel (“And Then There Were Nine”) about the Supreme Court and the environment at the fall meeting of the ABA’s Section on Environment Energy and Resources (SEER), which was held in Baltimore.  I discussed the Supreme Court’s June 2017 decision in Murr v. Wisconsin and prepared a paper analyzing the voting record of Supreme Court Justices on regulatory takings issues.  One striking finding of my paper was that Justice Anthony Kennedy has voted in the majority in all 10 regulatory takings cases in which he has participated.

On October 28, former DOJ Assistant AG John Cruden and I presented our annual Supreme Court review to annual meeting of the American College of Environmental Lawyers (ACOEL) in Charleston, South Carolina.  After the meeting concluded, my wife and I ventured out to the Isle of Palms to examine the property that had been owned by David Lucas in the Supreme Court’s landmark Lucas v. South Carolina Coastal Council case decided in 1992. Although Lucas had rejected the state’s conclusion that his beachfront property was endangered by sea level rise, it is now right at the edge of the ocean.  After the state bought out Lucas, they allowed two homes to be built on the properties.  Even though Hurricane Irma passed 200 miles to the west of Charleston, these homes were severely damaged by it and were boarded up when we visited them.  Meanwhile the Isle of Palms has been seeking millions of dollars from the Federal Emergency Management Agency (FEMA) for beachfront replenishment projects.

On November 10 I attended the wedding of a former student, Lori Schectel, in Palm Springs, California.  Lori now lives in San Francisco and is responsible for environmental permitting for Contra Costa County.  The day after the wedding I toured wind and solar energy farms north of Palm Springs which constitute a veritable museum documenting the development of improved renewable energy technologies over the last several decades.  When leaving Palm Springs I flew over the portion of the wind farms that also is being used to recharge the underground aquifer with some of the surplus runoff from last year’s drought-ending rainfall in California.  On November 20 I showed some of the photos I took of the aquifer recharge effort at a luncheon in Queenstown, Maryland for the multidisciplinary CONSERVE water reuse project I am involved in.  From November 30-December 3 I was back in California, touring Napa antd Sonoma to support the efforts of their wineries to recover from the fires.

On November 16 & 17 Maryland’s Environmental Law Program hosted a summit of U.S. environmental law clinics.  Representatives of thirty of the 62 U.S. environmental law clinics attended the conference.  The participants focused on how to improve collaboration among the clinics to maximize their impact.  The conference concluded with Georgetown environmental clinic director Hope Babcok delivering a stirring call to action.  Video of her presentation is available online at: http://video.law.umaryland.edu/OpenPlayer.asp?GUID=9BDE1BD2-F0DC-4FD1-9A41-240603328C5A

On Saturday November 18 I spoke on a panel on “Environmental Law Without Congress at the Federalist Society’s National Lawyers Convention in Washington, D.C.  I noted that virtually all the major federal environmental statutes had been passed by overwhelming, bipartisan majorities in Congress.  Now legislative gridlock has plagued environmental legislation, but bipartisan compromises produced laws comprehensively updating the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) in 1996 and the Safe Drinking Water Act during the same year.  I also reviewed the factors that contributed to the 2016 nearly unanimous adoption of the Frank Lautenberg Chemical Safety for the 21st Century Act in June 2016.  Video of my presentation is available online at: https://www.youtube.com/watch?v=7AJB4MTC3Ns

On Monday I am flying to Amsterdam for the Dutch royal family’s Prince Claus Fund awards, which will be presented at the Royal Palace on December 6.  Chinese environmentalist Ma Jun is winning one of the top awards and the Prince Claus Fund asked me to prepare a tribute to him.

Hurricanes Caused Immense Environmental Damage, Minimata Convention Enters into Force, Nicaragua to Join Paris Climate Accord (by Bob Percival)

It has been two months since my last blog entry because I have been incredibly busy with both vacation and work.  In August my wife and I spent ten days in Iceland, including a week on a Wilderness Travel hiking expedition.  A slideshow of photos of our trip can be accessed online at: https://www.dropbox.com/s/d9288ispds64s3o/Iceland_August_2017_copy.m4v?dl=0.  The day after we returned from Iceland my son and I traveled to Oregon where we observed the total solar eclipse on August 21 from a hillside on a historic farm in the wine country south of Portland.  In September I have been working non-stop to prepare for fall classes (teaching Environmental Law to undergrads in College Park and to law students in Baltimore) and to finish some long-time research projects.  I have completed the manuscript for the new 8th edition of my casebook Environmental Regulation: Law, Science and Policy.  It has been four years since the seventh edition came out in 2013.  My editors report that I will be receiving page proofs shortly and the bound book should be in bookstores by early January 2018.

Three hurricanes have caused significant damage in Houston, Florida, Puerto Rico and the Virgin Islands. At the end of August Hurricane Harvey hit Houston. In early September Hurrican Irma hit the west coast of Florida, and in late Sepatember Hurricane Maria devastated Puerto Rico.  The hurricanes left substantial environmental damage in their wake, flooding oil refineries, chemical plants, and Superfund sites in Houston.  An Arkema chemical plant in Crosby, texas caught fire and released toxic air pollutants. ExxonMobil’s Baytown oi refinery, the second largest in the country, also was damaged, causing environmental releases of chemicals.  Compiling regulatory filings from oil refineries, chemical plants, and shale drilling sites, the Center for Biological diversity found that there had been releases of at least 1 million pounds of extra pollutants in the Houston area.  Chemicals released included benzene, 1,3 butadiene, hexane, hydrogen sulfide, sulfur dioxide, tolulene and xylene.  Air monitors from the Environmental Defense Fund in the Manchester neighborhood of Houston found up to 324 parts per billion of benzene, well above levels that require workers to wear breathing apparatus.

Scores of sewage treatment plants in the Houston area flooded and released raw sewage.  Sheila Kaplan and Jack Healy, Houston’s Floodwaters Are Tainted, Tests Show, N.Y. Times, Sept. 11, 2017. Testing of some floodwaters found “astonishing levels of E.coli in standing water in one family’s living room – levels 135 times those considered sage – as well as elevated levels of lead, arsenic and other heavy metals in sediment from floodwaters in the kitchen.” A few weeks before Harvey hit Houston, President Donald Trump has issued an executive order revoking an Obama administration directive that infrastructure projects receiving federal funds should conduct flood planning that takes into account rising sea levels from climate change.

On August 16, 2017, the Minimata Convention on Mercury entered into force. A total of 83 countries, including the U.S., have deposited their instruments of acceptance of the convention that seeks to lower global environmental releases of mercury. The first Conference of Parties to the Convention has just concluded in Geneva, Switzerland.

President Daniel Ortega told Nicaraguan state media that his government will join the Paris climate accord. Originally Nicaragua did not join the agreement concluded in December 2015 because Ortega said it did not require enough sacrifice from wealthy countries. Syria is now the only country that failed to join the agreement.  Rumors reported by EU climate negotiators that the Trump administration may reconsider its decision to withdraw from the Paris climate accord were forcefully denied on September 17 by Trump administration officials.  States iare now taking the lead in the U.S. in promoting efforts to reduce greenhouse gas emissions.  California is hanging tough even as the Trump administration considers relaxing fuel efficiency standards.  Northeastern states have strengthened their Regional Greenhouse Gas Initiative (REGGI).

In late August the NGO Sea Shepherd announced that it will no longer shadow the Japanese whaling fleet because the Japanese military was providing the fleet with data on the location of Sea SHepherd’s boats that made it easy for the whaling fleet to elude them.

The final report of the Australian Panel of Experts in Environmental Law (APEEL) is now online at: http://apeel.org.au  It consists of a Blueprint and eight technical reports sketching an ambitious vision for a new generation of environmental laws.

Even as the first Volwkswagen employees start to receive criminal sentences, a group of scientists has estimated that 38,000 people die prematurely each year due to diesel exhaust in excess of emission limits, see: https://www.theguardian.com/environment/2017/may/15/diesel-emissions-test-scandal-causes-38000-early-deaths-year-study

In late August a judge in Ecuador sentenced 20 Chinese fishermen to up to four years in jail for illegally catching 6,600 endangered sharks in Ecuador waters.

Kenya has passed the world’s toughest ban on the production, sale or use of plastic bags to reduce environmental pollution.  Penalties can range up to a $40,000 fine and four years in jail. See: https://www.theguardian.com/environment/2017/aug/28/kenya-brings-in-worlds-toughest-plastic-bag-ban-four-years-jail-or-40000-fine 

At the end of August a Brazilian judge suspended a decree From Brazilian President Michel Temer that would have opened up a vast nature reserve in the amazon to mining.  Judge Rolando Valcir Spanholo concluded thaqt the decree exceeded the President’s powers because only the Brazilian Congress could lift the protected status of the reserve.

U.S. Interior Department officials are moving to open up the Alaskan National Wildlife Refuge (ANWR) to seismic exploration to get a better idea of the size of the oil reserves contained there. Interior is also moving to shorten environmental impact assessments. An  August 31 memo from Interior Deputy Secretary David Bernhardt said EISs normally should not be more than 150 pages and take more than a year to prepare.

Malawi Field Trip, Australian Panel of E-Law Experts, Conversation Piece, Methane Rule Suspension Illegal (by Bob Percival)

Last week I returned from two weeks in Malawi where some of my students and I were on a field trip to assist the University of Malawi Chancellor College of Law’s Environmental Justice and Sustainability Clinic.  We left the U.S. on July 7 and arrived in Malawi on Saturday July 8.  On Sunday July 9 we visited Liwonde National Park, which is located north of Zomba, the city where the law school is located.  In Liwonde we saw considerable wildlife, including elephants, warthogs, eland, waterbucks, hippopotamus, and monkeys.  African Parks, a global NGO, has been managing some of Malawi’s protected areas including Liwonde.  They are in the process of installing fences around the perimeter of the park and recently they have moved some elephants from Liwonde to protected areas further north.  Prince Harry visited Liwonde the week before we arrived to help with this project.

On Monday July 10 my students and I participated in a day-long workshop organized by Professor Chikosa Banda of Chancellor College of Law.  The workshop, which was held at the law school, focused on environmental law clinical education at Chancellor College of Law.  I spoke in the morning on the history of the global environmental justice movement.  Maryland 3L Taylor Lilley spoke on different models of environmental law clinics around the world.  Maryland 2L Julia Kenny described how the student practice rule works in the U.S. and Atiji Phiri, a native Malawian who who just received her LLM from Maryland, discussed the role of citizen suits in environmental enforcement in the U.S. and Malawi.  We were honored to learn that a member of the audience including one of the few female chiefs of a village in Malawi.  Following the conference we visited the Zomba office of the NGO Leadership on Environment and Development (LEAD), which is using drones to help communities learn more about how to protect their local environments.

On Tuesday July 11 we traveled from Zomba to Lilongwe, the capital of Malawi, where we met with staff from the Environmental Affairs Department (EAD).  They explained the challenges they face in implementing a new National Environmental Management Act, which Parliament has just passed, but which has not yet taken effect.  The law will create a new Ministry of Environmental Protection and open the door to citizen suits by virtually eliminating standing requirements for environmental NGOs.  Implementation of the legislation will be particularly challenging because there are only two lawyers in the current EAD.  Following our meeting we visited the Mausoleum of Dr. Hastings Kamuzu Banda, who ruled Malawi from 1961 until 1994. Malawi became fully independent from Britain in 1964.

On Wednesday July 12 we traveled with Professor Chikosa Banda to Lake Chilwa in eastern Malawi.  The lake, which is the second largest in Malawi, is surrounded by wetland and has no outlet. It is severely polluted from runoff, and at times has dried up entirely.  A World Health Organization (WHO) project was providing free cholera shots at the lakeside.  We visited a climate change adaptation project that included a solar-powered facility to help a community dry fish.  On Thursday July 13 we traveled to Mount Mulanje, a 3,000-meter massif that is part of the Mulanje Mountain Forest Reserve.  At the offices of the Mulanje Mountain Conservation Trust, an NGO established in part with funds from the government of Norway, we were briefed by program officer Moffat Kayembe.  He warned that despite the forest reserve, deforestation was occurring rapidly due to illegal logging.  We then hiked to the Likhubula Pools, formed by a stream flowing from the massif.

On Friday July 14 Atiji Phiri’s parents hosted a dinner for our group in Blantyre where we sampled local delicacies and met Atiji’s extended family.  On Sunday July 16 we traveled to Cape Maclear on the shores of Lake Malawi.  Lake Malawi is the ninth largest lake in the world and the third largest in Africa.  It is home to more species of fish than any other lake in the world and more sfish pecies than North America and Europe have combined.  We saw many of the species of cichlids during a boat trip to an island in the lake, as well as some Nile crocodiles late at night attracted by some of our students dipping their toes into the water. 

On Tuesday July 18 we visited the Satemwa Tea Estate in Thyolo south of Blantyre.  We toured  historic Huntington House on the estate grounds.  We then visited Game Haven, a private game reserve where we saw zebras, eland and giraffes.  On Wednesday July 19 we visited the Center for Environmental Policy and Advocacy (CLEAR) in Blantyre.  William Chadza, Executive Director of CLEAR, briefed us on the challenges facing environmental NGOs in Malawi.  He noted that four of the five sewage treatment plants in the country are not working and he took us to a site where a sewage pipe is broken and spewing untreated effluent into a stream used by many people.  Later on July 19 we visited the Malaria Alert Center at Queen Elizabeth Hospital in Blantyre.  A week before Madonna, who has adopted children from Malawi, opened a new wing of the hospital.

I have put together a 22-minute slideshow of the Malawi environmental law field trip that can be viewed at: https://www.dropbox.com/s/m0dkfmzw32pqtxd/Malawi%20July%202017.m4v?dl=0

Before traveling to Malawi, I spent a weekend in Sydney, Australia meeting with the Australian Panel of Experts on Environmental Law (APEEL) for whom I serve as an advisor.  The panel members met at the offices of the Wilderness Society in Sydney on July 1 & 2.  The panel’s technical papers, an overview report and 57 recommendations for improving environmental law in Australia is available online at: http://apeel.org.au  The panel was created in 2014 when Australia’s then prime minister Tony Abbott was doing to Australian environmental law what President Trump is trying to do now.  Early in the month I published a piece on “How Environmentalists Can Regroup for the Trump Era” in The Conversation.  It has been widely reprinted, including in Salon (http://www.salon.com/2017/07/14/how-environmentalists-can-regroup-for-the-trump-era_partner/) .  The article notes that the U.S. Court of Appeals for the D.C. Circuit recently has struck down as illegal EPA’s attempt to suspend a regulation regulating methane leaks from new oil and gas operations. 

Next month I will be hiking in Iceland (from August 9-18) and then traveling to the U.S. west coast to view the August 21 total solar eclipse before starting fall classes on August 28.

Trump Announces Intent to Withdraw from Paris Climate Accord, 15 IUCN Academy Colloquium in Cebu, Murr Decision (by Bob Percival)

On June 1 President Donald Trump announced that he intends to withdraw the U.S. from the Paris Climate Accord.  He did so against the advice of the leaders of major corporations, Secretary of State Rex Tillerson and his daughter Ivana.  Several world leaders criticized the decision, which cannot take effect until November 2020 under the terms of the agreement.  Only two other countries in the world have rejected the Paris Agreement - Nicaragua (on the ground that it is not strong enough) and Syria. In his statement announcing the withdrawal, President Trump falsely asserted that the agreement “punishes the United States . . . while imposing no meaningful obligations on the world’s leading polluters.”  He also falsely asserted that the Paris Agreement would cost the U.S. economy $3 trillion dollars in lost GDP and 6.5 million industrial jobs. In an effort to mollify some of his critics, Trump bizarrely announced that the U.S. would “begin negotiations to reenter either the Paris Accord or a really entirely new transaction on terms that are fair to the United States, its businesses, its workers, its people, its taxpayers.”  World leaders promptly rejected any suggestion of renegotiating the Paris Accord.  Several states, cities, corporations, and universities have pledged to work to achieve the U.S. goals in the Paris Accord for reduction of greenhouse gas emissions despite the federal government's withdrawal.

I spent the end of May and the first week of June at the 15th Colloquium of the IUCN Academy of Environmental Law, which was held in Cebu, Philippines.  The Colloquium is the annual gathering of members of the Academy, a consortium of more than 200 law schools from 60 countries.  More than 180 environmental law professors and students from 30 countries attended the Colloquium, which was hosted by the University of Cebu.  The theme of this year’s colloquium was “Stories of the World We Want - and the Law as a Pathway.”  Two of my students presented papers at the Colloquium. Rising 3L Shannon Himes presented a paper on “Expanding Marine Protected Areas to Mitigate Climate Change: A Comparison of Hawaii and the Philippines.”  Her presentation incorporated photos she took the previous day while visiting Philippine marine protected areas.  Rising 3L Kerri Morrison presented a paper on “National and Multinational Strategies for Radioactive Waste Disposal.”  Kerri’s paper had been published in the Environmental Law Reporter (47 ELR 47300) in April 2017.  I addressed a plenary session of the Colloquium on June 2 that focused on environmental success stories.  I reviewed lessons that can be learned from the history of the successful global effort to phase out leaded gasoline.  I also delivered remarks at the closing reception of the Colloquium, which was held in the historic 16^th-century Fort San Pedro in Cebu City.

This year’s Colloquium featured keynote addresses from Philippine Supreme Court Justice Antonio T. Carpio and Philippine environmental activist Tony Oposa, Jr. as well as an opening reception hosted by Hilario Davide III, Governor of Cebu Province. Several professors from Southeast Asian law schools who participated in the Academy’s Training the Teachers (TTT) program also attended the Colloquium.  Funded by a grant from the Asian Development Bank, the TTT program is helping hundreds of professors to develop competence in environmental law.  In the past 12 months, TTT workshops have been held in China, Vietnam, the Philippines, and Malaysia.  During the next 12 months programs will be held in Cambodia, Thailand, Myanmar, and Nepal.  Maryland’s Environmental Law Partnership with Pace University’s Haub School of Law serves as the Secretariat for the IUCN Academy of Environmental Law.   

On June 23, the U.S. Supreme Court rejected an effort by property rights advocates to make it easier to claim a regulatory taking when regulations permit development on only one of two adjacent parcels of land held in common ownership.  In Murr v. Wisconsin, the Court voted 5-3 that this did not constitute a regulatory taking requiring the government to compensate the property owner.  The Court’s 5-3 majority opinion (with Justice Gorsuch not participating) was written by Justice Kennedy who emphasized the importance of taking a flexible and pragmatic approach to determining what constitutes the “parcel as a whole” in assessing the fairness of regulatory burdens.  He agreed with the conclusion of Wisconsin courts that the adjacent parcels of land should be considered as one because they had the same owners.  Otherwise there would be an incentive for what Kennedy called “strategic unbundling” of property rights to undermine the traditional “parcel as a whole” approach.

Trump Postpones Decision on Paris Agreement, Global Seed Vault Breached, Methane Rule Upheld, Goldman Prizes, Cebu Colloquium (by Bob Percival)

Facing conflicting recommendations from top advisers, President Donald Trump has decided to postpone a decision concerning whether the U.S. should withdraw from the Paris climate agreement until after he hears the opinion of other world leaders at the G-8 Summit meeting in Taormina, Italy on May 26-27, 2017.

Melting permafrost on the Norweigan island of Spitsbergen has caused seepage into the entrance tunnel of the Svalbard Global Seed Vault.  The vault is located inside a mountain in an abandoned Arctic coal mine, far below the permafrost.  It is designed to help preserve the world’s crops and plants in the event of a global disaster.  Global warming has caused some of the permafrost unexpectedly to melt, permitting seepage to breach the entrance tunnel where it froze as the seeds are kept at below freezing temperatures.  Trenches are being dug to divert seepage away from the facility, which is owned by the government of Norway.  Pumps are being installed in the event of further flooding.

Although challenges to the Obama administration’s Clean Power Plan were argued last September before the U.S. Court of Appeals for the D.C. Circuit, sitting en banc, no decision has been issued.  On April 28 the court issued an order suspending the litigation for 60 days while asking for briefing on whether to return the rule to EPA.  Environmental groups want the court to decide the case because the legal issues it  

In April the U.S. Supreme Court rejected a request from the Obama administration to halt consideration of a case involving the question whether challenges to the “waters of the U.S.” rule should be heard first in federal district court or in the U.S. Courts of Appeal.  The Court announced in January that it would grant a petition for review in National Association of Manufacturers v. U.S. Department of Defense, No. 16-299.  Environmentalists argued that even if the Trump administration repeals the rule, the same legal issues concerning the appropriate venue to challenge that action will be presented.  Twenty-two petitions for review of the rule were filed in the U.S. Courts of Appeal while 18 lawsuits challenging the rule were filed in federal district courts.  The U.S. Court of Appeals for the Sixth Circuit has issued a nationwide stay of the rule, but it has suspended its consideration of the merits of the legal challenges until after the Supreme Court rules on the appropriate venue.

On May 10 the U.S. Senate by a vote of 51-49 rejected an effort to use the Congressional Review Act (CRA) to veto a Bureau of Land Management (BLM) regulation limiting emissions of methane from oil and gas drilling on federal lands.  Three Republican Senators - Lindsay Graham (SC), Susan Collins (ME), and John McCain (AZ) - joined all 48 Democrats in voting against the resolution.  Vice President Mike Pence had been on hand to break a potential tie, but Senator McCain surprised observers by providing the decisive vote against the resolution.  He cited the fact that a CRA veto would bar BLM from regulating methane emissions in the future.  This is a significant, symbolic victory for environmentalists, though it remains possible that the Trump administration will suspend or alter the regulations.

On April 24 the recipients of the Goldman Environmental Prize for 2017 were announced at a ceremony in San Francisco.  They include Uroš Maceri from Slovenia, Prafulla Samantara from India, mark Lopez! from the U.S., Rodrigo Tot from Guatemala, Rodrigue Mugarka Katembo from the Democratic Republic of the Congo, and Wendy Bowman from Australia.  Maceri stopped a cement kiln from being allowed to co-incinerate petcoke and hazardous waste. Samantara helped protect the Niyamgiri Hills from a proposed open-pit aluminum mine.  Lopez persuaded the state of California to clean up pollution from a battery smelter in East Los Angeles.  Tot won a lawsuit requiring the government of Guatemala to issue land titles to his Q’eqchi community and to halt the expansion of nickel mining.  Katembo exposed bribery and corruption by proponents of oil drilling in Virunga National Park.  Bowman stopped a multinational mining company from taking her family farm and subjecting other residents of the Hunter Valley from further coal pollution. More detailed descriptions of their accomplishments are available online at: http://www.goldmanprize.org/prize-recipients/current-recipients/ 

The global shift toward renewable energy sources continues.  On April 21, for the first time since the 1800s, Great Britain went a full day without burning any coal to generate electricity.  Several other countries previously have eliminated the use of coal-fired powerplants, including Belgium, Norway, and Switzerland.  Britain has not closed all its coal-fired power plants, but the few remaining ones did not operate on April 21 due to reduced demand for electricity then. Katrin Bennhold, For First Time Since 1800s, Britain Goes a Day Without Burning Coal for Electricity, N.Y. Times, April 22, 2017, at A6.

On Thursday May 25 I leave for Cebu, Philippines to participate in the 15th Colloquium of the IUCN Academy of Environmental Law, which will be held from May 31-June 3.  On May 29 & 30 there will be pre-colloquium programs on environmental law teaching and research. This will be the first colloquium with the Maryland/Pace Partnership in Environmental Law serving as the Secretariat for the Academy.  We are particularly excited about welcoming participants from several law schools in Vietnam who participated in the Academy’s Training the Trainers program funded by the Asian Development Bank. Our Maryland delegation will include Managing Director William Piermattei and two students who have just completed their second year of law school - Shannon Himes and Kerri Morrison.  The theme of the colloquium is “Stories of the World We Want - and Law as a Pathway.”  I will be addressing the successful global effort to phase out leaded gasoline.  Shannon will be presenting a paper on marine protected areas and Kerri will be presenting a paper comparing various countries’ efforts to dispose of high-level radioactive waste.  Kerri’s paper on “National and Multinational Strategies for Radioactive Waste Disposal” was published in April by the Environmental Law Reporter (47 ELR 47300). 

El Salvador Bans Metal Mining, Japan's Whaling Fleet Returns, Trump Orders Reconsideration of Clean Power Plan, 10th Circuit Upholds ESA (by Bob Percival)

On March 29 El Salvador’s Legislative Assembly enacted legislation banning all metals mining in the country.  The measure passed with bipartisan support and backing from the influential Roman Catholic church.  Supporters of the ban argued that El Salvador’s environment is too fragile to support metals mining, particularly in light of the country’s limiting water resources.  While several countries have prohibited the use of cyanide in mining operations, El Salvador becomes the first country to prohibit all metals mining.  Mining for coal, salt and other non-metalic substances will still be permitted.  In October 2016 El Salvador prevailed in an international arbitration that rejected claims for compensation by a Canadian-Australian company that was denied permits to mine gold. Gene Palumbo & Elisabeth Malkin, El Salvador, Prizing Water Over Gold, Bans All Metal Mining, N.Y. Times, March 29, 2017, https://www.nytimes.com/2017/03/29/world/americas/el-salvador-prizing-water-over-gold-bans-all-metal-mining.html?_r=0.

On March 31 Japan’s whaling fleet returned from Antarctica after killing 333 minke whales in the Southern Ocean.  In 2014 the International Court of Justice ruled that Japan’s whaling was in violation of rules established by the International Whaling Commission (IWC) because it was not being conducted for purposes of scientific research.  While this decision temporarily halted Japanese whaling in the Antarctic, the government of Japan revised its program to qualify for the research loophole.  Japan’s Fisheries Ministry claims that the whale hunt was necessary to learn more about the reproductive and nutritional cycles of minke whales.  Kitty Block, vice president of the Humane Society International, described the whale hunt as “an obscene cruelty in the name of science that must end.”  Rachel Mealey, Japan’s whaling fleet returns after killing 333 minke whales in Southern Ocean, ABC, March 31, 2017, http://www.abc.net.au/news/2017-03-31/japan-whaling-fleet-kills-333-minke-whales-southern-ocean-hunt/8405690. 

On March 28 U.S. President Donald Trump signed Executive Order 13,783 on “Promoting Energy Independence and Economic Growth.” While stating that “all agencies should take appropriate actions to promote clean air and clean water for the American people,” it directs agencies instead to focus on removing burdens to the development of domestic energy resources. The executive order rescinds President Obama’s June 2013 Climate Action Plan as well as four Obama Presidential Memoranda on climate change.  It directs the Council on Environmental Quality to rescind its August 2016 final guidance on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews.  

Executive Order 13,783 also directs EPA Administrator Scott Pruitt to review and, “if appropriate” to “suspend, revise or rescind” EPA regulations on greenhouse gas emissions, including the Clean Power Plan that applies to emissions from existing power plants.  The Clean Power Plan currently is stayed pending the outcome of legal challenges to it, which could be decided any day by the U.S. Court of Appeals for the D.C. Circuit.  The Trump administration has asked the court to suspend its consideration of the legal challenges, which were argued en banc on September 27, 2016.  The executive order also disbands the Interagency Working Group on the Social Costs of Greenhouse Gases and withdraws its guidance on how the social cost of GHG emissions should be calculated. A copy of EO 13,783 is available online at: https://www.federalregister.gov/documents/2017/03/31/2017-06576/promoting-energy-independence-and-economic-growth

In a unanimous decision issued on March 29, a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit reversed a decision holding that the Endangered Species Act (ESA) could not constitutionally be applied to the endangered Utah prairie dog.  In November 2014 federal district judge Dee Benson had held that because the prairie dog was found only in southwestern Utah, Congress did not have the constitutional authority under the commerce clause to protect it.  Under this rationale, the more endangered a species is, the less would be the federal power to protect it.  In People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Service, the Tenth Circuit panel concluded that the ESA can constitutionally be applied to the prairie dog because even noncommercial, purely intrastate activity can be regulated when it is an essential part of a larger regulatory scheme that has a substantial effect on interstate commerce.  The court noted that most endangered species do not cross state lines but their protection is an essential part of a larger regulatory scheme to preserve biodiversity.  As a result of this decision, nine U.S. Courts of Appeals have upheld the constitutionality of the ESA and none has held it to be unconstitutional.  A copy of the court’s decision is available online at: https://www.ca10.uscourts.gov/opinions/14/14-4151.pdf

Surprise inspections by China’s Ministry of Environmental Protection (MEP) found widespread violations of regulations to control air emissions in seven northern Chinese cities.  On April 3 MEP’s website reported that many industrial plants have been fabricating real-time monitoring data and operating production lines that are supposed to be shut down during smog alerts.  In March an MEP inspection of 869 factories in Beijing, Tianjin, Hebei and Shanxi provinces found more than 200 environmental violations including excessive emissions and falsification of monitoring data. Starting on April 5, MEP has launched a year-long environmental inspection program in 28 major cities that will involve more than 5,600 government workers.

Even though China and the U.S. are the two largest emitters of greenhouse gases in the world, climate change was not discussed when Chinese President Xi Jinping met with President Trump for the first time on April 6-7.  While directing EPA to consider repealing its regulations to control GHG emissions, President Trump has not taken steps to pull the U.S. out of the Paris Agreement.

On April 5 Dean Mohammad Takshid of the University of Tehran Law School spoke to my Global Environmental Law Seminar by Skype.  Dean Takshid gave a terrific lecture on the environmental challenges facing Iran, including air pollution, desertification and water shortages.

New Zealand and India Give Rivers Legal Personality, World Water Day, Beijing Closes Its Last Coal-Fired Plant, China Trip & World Baseball Classic (by Bob Percival)

During the last two weeks New Zealand and India have granted legal rights to rivers.  On March 15 legislation was adopted by the New Zealand parliament that grants the Whanganui River the same legal rights as humans.  The provision is part of legislation settling claims against the New Zealand government by the indigenous iwi people.  Under the legislation two guardians will be appointed to represent the river -- one selected by the iwi and the other by the Crown.  On March 20 the high court in Uttarakhand state in India, citing the New Zealand precedent, granted legal personality to the Ganges and Yamuna Rivers.  The judges declared that the rivers and their tributaries are “legal and living entities having the status of a legal person with all corresponding rights, duties and liabilities.”  The court appointed the head of the National Mission for a Clean Ganges and the state’s advocate general and chief secretary to represent the rivers in legal proceedings.  The decision is the product of public interest litigation brought against the states of Uttarakhand and Uttar Pradesh for failure to cooperate with federal government efforts to protect the Ganges.

March 22 was celebrated as World Water Day and the start of China Water Week.  The United Nations Children’s Fund reported that 1.8 billion people still use contaminated drinking water.  The Sustainable Development Goals adopted by the UN in 2015 include ensuring that everyone has access to safe drinking water by 2030.  On March 20 China’s Ministry of Environmental Protection reported that the nation had met its goals for improving water quality in 2016 with 67.8% of the country’s 1,940 monitoring stations reporting water quality within the top three tiers of the nation’s rating system.  On March 22 China’s State Oceanic Administration reported that 95% of the nation’s marine waters met the nation’s highest tier of the country’s four-tier system for assessing the quality of marine waters. China is in the process of having its provinces establish “river chiefs” with responsibility for preventing water pollution in watersheds

On March 18 Beijing officials closed the last remaining coal-fired power plant operating in the city.  The Huangneng Beijing Thermal Power Plant, owned by China Huaneng Group, opened in June 1999 in the eastern suburbs of Beijing.  It is the last of four coal-fired power plants in Beijing to be retired.  The other three were retired in 2014 and 2015.  Together they burned more than 8.5 million tons of coal annually.  With the plant’s closure, Beijing became the first large city in mainland China to no longer have coal-fired power plants, though it still imports some electricity generated by coal-fired power plants in Inner Mongolia and Hebei provinces.  Capital Retires its Last Coal-Fired Power Station, China Daily, March 20, 2017, at A7.

On March 24, U.S. President Donald Trump granted approval for construction of the Keystone XL pipeline.  Trump’s decision reverses former President Obama’s November 2015 denial of a permit for the pipeline to cross the Canadian border.  The pipeline still needs approval from Nebraska authorities, something that Trump promised to help expedite.

The University of Maryland Carey School of Law has announced a successor to Professor Jane Barrett, director of Maryland’s Environmental Law Clinic.  EPA attorney Seema Kakade will be the new director of the clinic beginning on July 1, 2017, when Professor Barrett retires.  Professor Kakade is an expert on air pollution issues who helped handle the prosecution of Volkswagen for its deceptive emissions-testing software.  She also formerly served as director of the Environmental Law Institute’s India program.

I have been in Shanghai for the past week while on spring break.  I made a presentation at NYU Shanghai on March 21 of some of the highlights of environmental law films my students have made over the years.  Two of my students (Chris Remavege and Taylor Lilley), who made the top films in the class last fall then presented their films, “Glass Half Full: Sustainable Vineyards” (about how wineries are trying to reduce their carbon footprints) and “A World in Retreat” (about adapation to sea level rise). On Wednesday I gave a lecture on international environmental law at Shanghai Maritime University.  On Thursday I was part of a panel discussion at NYU Shanghai on careers in environmental law and I gave a presentation on the Trump administration and environmental law to students from Shanghai Jiatong University’s Ko Guan School of Law.  

On the way to China I stopped in San Diego to attend World Baseball Classic games on March 17 & 18.  I saw the U.S. narrowly lose to Puerto Rico and then defeat the Dominican Republic in the game that advanced the U.S. team to the semifinals. After defeating Japan in the semifinals on March 21, the U.S. won the championship by defeating Puerto Rico on March 22.  This is the first time the U.S. has won the World Baseball Classic since it was started in 2006.  It is now played every four years.

VW Guilty Plea, Pruitt on Climate, IBWC Investigating Sewage Spill, Beijing Taxis to Go Electric, Human Rights Lawsuits Against Canadian Mining Companies (by Bob Percival)

I just returned from Guadalajara, Mexico where my son and I attended World Baseball Classic (WBC) games on Friday and Saturday.  The WBC is an international baseball tournament that is held every four years.  We attended games between Puerto Rico and Venezuela and Mexico versus Puerto Rico.  The 16,000-seat Estadio de Baseball de los Charros de Jalisco was filled to capacity and the atmosphere was more like at the World Cup than a regular MLB game.  Puerto Rico won both games and will advance to the next round next weekend in San Diego.  I also checked another item off my bucket list by touring tequila distilleries around the town of Tequila, just north of Guadalajara.

On March 10 Volkswagen AG pled guilty in federal district court in Detroit to criminal charges for intentionally violating the Clean Air Act and obstruction of justice in connection with its cheating on vehicle emissions testing.  As announced earlier when its plea agreement was disclosed, the company will pay a $2.8 billion criminal fine.  It also was disclosed that VW will pay an added $1.5 billion civil penalty.  When the company is formally sentenced on April 21 the court is expected to appoint independent monitor to track its regulatory compliance for the next three years.  Seven VW executives have been indicted for their role in this deliberate fraud.  Only one has been arrested when he was caught trying to leave the U.S.  The others are in Germany and it is unclear whether that country will permit their extradition to the U.S. to face the criminal charges.  If no high-level VW executives go to jail, it will be a severe indictment of the effectiveness of criminal sanctions against corporations for environmental violations.

Last week during an interview on CNBC, EPA Administrator Scott Pruitt stated that he did not believe CO2 was a primary contributor to climate change.  Critics of Pruitt immediately pointed out that this contradicts what EPA's own website says.  Pruitt subsequently stated that he thinks Congress should decide whether EPA has the authority to regulate emissions of greenhouse gases, an issue that already has been resolved by the U.S. Supreme Court a decade ago in Massachusetts v. EPA, a decision the Court has twice reaffirmed.  For someone who claims to want to adhere strictly to the law, Pruitt has some unusual ideas.  In an editorial on March 12, the Houston Chronicle stated that "The Environmental Protection Agency serves a a pollution referee in the competition between industry and nature."  But it said that "everyone should start to worry" because Pruitt was acting as a referee who "runs out on the field, grabs the ball and stiff arms his way into the end zone." Carbon Referee, Houston Chronicle, March 13, 2017 at A29. The editorial noted that at an oil industry conference in Houston last week the Saudi Arabian Energy Minister Khalid Al-Falih emphasized the importance of investments to help shrink the carbon footprint of fossil fuels. "Petroleum is an international business, and whether Pruitt likes it or not, the world is moving ahead on carbon regulations.  The Trump administration cannot keep reality at bay.  The industry is already preparing itself for inevitable global warming rules.  Pruitt's refusal to get on they level has started to hurt long-term plans."

The U.S./Mexico International Boundary and Water Commission (IBWC) announced that it will investigate a massive spill of raw sewage that fouled beaches from Tijuana to San Diego.  The spill which was first spotted in early February, is estimated to have included more than 143 million gallons of raw sewage that spilled into the Tijuana River.  Although it originated in Mexico, the precise source and cause of the spill are unclear.

Municipal authorities in Beijing announced that the city taxi fleet will be replaced with electric vehicles.  Approximately 67,000 existing taxis in the city will be replaced with electric vehicles and all new taxis will be electric.  The move is being undertaken as a response to severe air pollution that has plagued the city this winter.  It also would be nice if the city prosecuted taxi drivers who disable seat belts in their vehicles and require taxi drivers and passengers to use them.

Friday March 3 was the one-month anniversary of the murder of Honduran environmental activist Berta Caceres.  Eight suspects remain in custody, two of whom were arrested in the last two months.  The U.S. Embassy in Honduras released a statement marking the anniversary of the murder stating that the U.S. government “remains committed to helping Hondurans build a future in which the underlying causes of impunity are resolved, and in which the guilty are held to account for their actions.”

In the last several months two Canadian courts have allowed lawsuits to proceed against Canadian mining companies for harmed caused in their operations abroad.  In late January the British Columbia Court of Appeal allowed a human rights lawsuit to proceed against Tahoe Resources Inc.  Plaintiffs in the lawsuit are seven Guatemalan protesters who were shot in April 2013 while protesting the Escobel mine owned by a subsidiary of Tahoe in southeastern Guatemala.  The court unanimously held that a lower court had erred in finding that Guatemala was a better forum for hearing the case. Garcia v. Tahoe Resources, Inc.  In October 2016 the British Columbia Supreme Court allowed a lawsuit alleging human rights violations by a Canadian company at a mine in Eritrea to proceed. Araya v. Nevsun Resources Ltd.

On February 28, 2017 President Donald Trump signed an executive order directing EPA Administrator Scott Pruitt to reconsider EPA’s “waters of the United States” rule.  This rule, which was promulgated in 2015, is a product of EPA’s long-time efforts to clarify the reach of federal jurisdiction under the Clean Water Act.  The rule was necessary because of the U.S. Supreme Court’s bizarre decision in Rapanos v. U.S., where the Court split 4-1-4.  Four Justices, led by Justice Scalia, stated that the Clean Water Act did not apply to wetlands that are adjacent to the non-navigable tributaries of navigable waters. Four Justices stated that the Act did apply.  Justice Kennedy, however, announced his own “significant nexus” test.  Although Kennedy’s test was rejected by all eight other Justices, it became the deciding factor and EPA’s rule was intended to determine when such waters have a significant nexus to navigable waters.  The new executive order directs EPA to consider adopting Justice Scalia’s “continuous surface connection” test that would radically restrict federal jurisdiction.  However, since this test was rejected by a majority of the Court (Kennedy and the four dissenters), EPA would be on shaky legal grounds if it adopts it.

Chinese NGOs Hit with Fees for Losing Lawsuit, South Africa's First Climate Suit, Northeast Florida Environmental Summit, Golden Tree Awards, Bosnian Mine Waste Spill (by Bob Percival)

A Chinese court has imposed a fee of 1.89 million yuan ($275,000) on two environmental NGOs for an unsuccessful public interest lawsuit.  The Changzhou Intermediate People’s Court in Jiangsu Province imposed the fee on Friends of Nature and the China Biodiversity Conservation & Green Development Foundation.  They sued three chemical companies for polluting land that later was sold in 2011 to build the Changzhou Foreign Language School, which opened in 2015.  The pollution was discovered after hundreds of students at the school became sick.  The court found that soil and groundwater pollution was “now under control” at the site and rejected the plaintiffs claims that the companies should be required to do further remediation.  The fee imposed on the NGOs includes not only legal fees, but a percentage of the amount the groups were seeking be devoted to additional cleanup.  Michael Standaert, Chinese Ruling Threatens Environmental Public Interest Suits, International Environment Reporter, Feb. 24, 2017.  In the U.S. plaintiffs in public interest litigation are not required to pay legal fees unless their lawsuits are found to be frivolous in order to avoid discouraging such litigation.  The NGOs are appealing the court’s decision to the Jiangsu Supreme People’s Court.  A copy of the court’s decision is available in Chinese at: http://news.xinhuanet.com/legal/2017-02/08/c_129470823.htm

On Thursday March 2 the Pretoria High Court will begin to hear South Africa’s first climate change lawsuit.  The Center for Environmental Rights, representing Earthlife Africa Johannesburg in a lawsuit challenging the Ministry of Environmental Affairs’ decision to approve the proposed Thabametsi coal-fired power plant.  The plaintiffs are arguing that the plant should not have been approved without having completed an assessment of its impact on climate change. The defendants argue that there is no specific requirement that climate impacts be assessed in the process of environmental impact assessment.  

On Friday February 24 I delivered the keynote address at the 18th Northeast Florida Environmental Summit.  The summit was held at Florida Coastal School of Law in Jacksonville, Florida.  The theme of the summit was “Protecting Communities from Harm: The Economic and Environmental Implications of Managing Harmful Waste.”  The subject of my keynote was “The Future of Environmental Law in the Trump Administration.”  I noted that newly-confirmed EPA Administrator Scott Pruitt has emphasized two principal themes: keeping EPA from exceeding its legal authority and respecting state prerogatives.  Noting that Pruitt lost most of his lawsuits against EPA when he was the attorney general of Oklahoma, I argued that it would be best for him to let the courts decide what the law is with respect to the Clean Power Plan and the “waters of the U.S.” rule.  If Pruitt seeks to stop California from implementing more stringent environmental controls on greenhouse gas emissions, he would be indicating that he is mor interested in weakening environmental protections than promoting cooperative federalism.

On February 15 the University of Maryland’s Environmental Law Program held its annual Golden Tree award ceremony.  Awards were given to environmental law films made by students in my Environmental Law class last fall.  Based on voting by judges, the two top films were “Glass Half Full: Sustainable Vineyards” and “A World in Retreat.”  The former film examines how wineries are trying to shrink their carbon footprints.  The latter film examines how coastal communities are responding to rising sea levels.   Chris Remavege and Taylor Lilley will be showing these films at NYU Shanghai on March 21.

On February 21, I presented two guest lectures to officials from Anhui Province in China who are in the U.S. to learn about U.S. environmental law deals with soil contamination.  China has a huge problem of soil contaminated by pollutants and it is in the process of developing new laws and policies for responding to it.  The lectures were held at the University of Maryland College Park under the auspices of its Office of China Affairs.

Last week a massive landslide of waste from an open pit coal mine blocked the flow of a river near the town of Kakanj in Bosnia-Herzegovina.  The landslide created a lake that has now flooded a major highway connecting the cities of Sarajevo and Zenica.  Two smaller villages, Ribnica and Mramor have been largely destroyed by the landslide.

Cambridge Conference, Air Pollution Alerts, Trump Takes Over, Canadian Court Protects Chevron Subsidiary (by Bob Percival)

From January 19-21 I participated in a conference at the University of Cambridge that brought together more than thirty global environmental law scholars who are authoring chapters in the Oxford Handbook of Comparative Environmental Law.  The conference, which included a dinner at King’s College on January 20, was hosted by Cambridge Professors Jorge Vinuales and Emma Lees, the book’s editors.  I am authoring a chapter on “Environmental Transitions: Forces Shaping the Evolution of Global Environmental Law.”  The conference was really terrific and I received some very helpful comments on my chapter. 

I spent two weekends in the heart of London where there were “highest level” air pollution alerts issued due to levels of PM10 being more than twice the legal limit. Paris also has been suffering from high levels of air pollution this winter.  Paris officials made public transportation free during the alerts.  They also assigned labels to each make and model of car based on the amount of pollution it emits, enabling them to ban the most polluting vehicles from the road during bad air days. Residents of Ulaanbaatar, Mongolia also held a large demonstration to protest air pollution with levels of particulates reaching 80 times the limit recommended by the World Health Organization.

On January 30 President Trump issued Executive Order 13771 on Reducing Regulation and Controlling Regulatory Costs.  The order mandates that agencies repeal two rules for every new rule they promulgate and it specifies that the repealed rules have to reduce costs to industry by at least as much as the new rule costs.  I have written a blog post critical of the executive order, which was posted on the American College of Environmental Lawyers blog on February 8.  It notes that the order is fundamentally flawed because it focuses solely on regulatory costs without consdiering the benefits of regulation.  Is President Trump Repeating Reagan’s Missteps on Regulatory “Reform?” American College of Environmental Lawyers Blog, Feb. 8, 2017, available online at: http://www.acoel.org/post/2017/02/08/IS-PRESIDENT-TRUMP-REPEATING-REAGAN’S-MISSTEPS-ON-REGULATORY-“REFORM”-.aspx  I also posted a short article in an online journal: “Environmental Law in the Trump Administration,” 4 Emory Corporate Governance and Accountability Review, Presidential Inauguration Issue, January 2017, online at: http://law.emory.edu/ecgar/content/volume-4/issue-special/essays-interviews/environmental-law-trump-administration.html

On January 20 a trial court in Ontario, Canada ruled that plaintiffs seeking to collect on the $9 billion judgment against Chevron for oil pollution in Ecuador cannot recover from the assets of the company’s subsidiary in Canada.

AALS Conference, China Plans $360 Billion Investment in Renewables, Environmental Crime in China (by Bob Percival)

From January 3-7, I attended the 111th annual meeting of the American Association of Law Schools in San Francisco.  Several panels at the conference focused on how the Trump administration is likely to seek legal and policy changes in various areas, but few speakers could be confident in their predictions.  One of the most interesting panels was a “hot topics” program on the Juliana v. United States litigation in the U.S. District Court for the District of Oregon.  Brought on behalf of 21 youths from across the U.S., the lawsuit argues that the federal government has violated younger generations’ constitutional rights to life, liberty and property and failed to protect essential public trust resources.  Having survived a motion to dismiss, the plaintiff are hoping to go to trial in fall 2017 to litigate whether the federal government has done enough to combat climate change.  Legal documents filed in the litigation are available online at: https://www.ourchildrenstrust.org/lawlibrary/

On Thursday January 5, I joined many professors from the Environmental, Natural Resoures, Energy and Animal Law sections on a field trip to the Greater Farallons National Marine Sanctuary off the coast of San Francisco.  While few whales were sighted during the trip (this is not the time of their migration), it was a beautiful, sunny day for a boat trip.

Last week China’s National Energy Administration announced that the country plans to invest 2.5 trillion yuan ($360 billion) in renewable energy sources between now and 2020.  This investment is expected to reduce emissions of CO2 by 1.4 billion tons, SO2 by 10 million tons, and NOX by 4.3 million tons. By 2020 installed renewable energy capacity is expected to account for 50% of new electricity generation.  While this investment will help reduce coal consumption, coal will still constitute 58% of the nation’s energy mix by 2020. Zheng Xin, Renewables Investments Surge to Help Clear the Air, China Daily, Jan. 6-8, 2016, at 18.

China’s Supreme People’s Court has issued a new interpretation of how criminal prosecutions for environmental violations should be handled.  The interpretation covers how courts should handle falsification of data, illegal dumping of hazardous waste, and how certain environmental crimes are defined.  “It also provides direction on which crimes deserve severe punishment, such as interfering with investigations related to environmental emergencies, for example, and which would merit lighter punishment, such as if an individual took quick action to remediate or resolve a spill incident.” Michael Standaert, China’s Top Court Cracks Down on Environmental Crime, BNA International Environment Reporter, Jan. 4, 2017.  

Despite increased emphasis on criminal prosecutions for environmental violations, China Youth Daily was critical of the outcome of a prosecution before the Yangzhou Intermediate People’s Court.  Citing the prosecution of Dystar Group for discharging 698 tons of waste acid into a canal without pretreatment, the journal stated: “The damage done by its illegal deeds are beyond measurement, but the punishments for crimes related to environmental pollution are rather light in this country.  The court only fined Dystar 20 million yuan, which is hardly enough to prevent it from committing similar misdeeds again, and certainly far from enough to mend the environmental damage it had already done.” The journal noted that the company had saved substantial amounts of money by failing to treat the waste and that there was no indication that any managers had been held criminally responsible, despite efforts to cover up the violation and destroy evidence.  Quoted in “Heavier Penalties Will remind Firms to Meet Eco-Standards,” China Daily, Jan. 6-8, 2017, at 16.

Last week the Center for Biological Diversity (CBD) filed a notice of intent to sue the U.S. Department of Commerce for failure to take action to require Mexico to protect the totoaba, a small porpoise that is critically endangered. CBD is asking that Mexico be certified as a nation that has diminished the effectiveness of the Convention on International Trade in Endangered Species (CITES) pursuant to the Pelly Amendment to the FIshermen’s Protective Act.

Amazon Watch announced last week that Rosa Moreno, a community nurse in San Carlos, Ecuador who assisted victims of oil pollution, has died of cancer.  In a statement dated January 4, Amazon Watch said: “She loved and served her community as they suffered from the many diseases caused by oil contamination, corporate and government neglect. She fought for justice in the case against Chevron. We vow to continue to seek justice for Rosa and all who have suffered from this abuse.”

Top Ten Global Environmental Law Developments in 2016 (by Bob Percival)

Now that the world has welcomed in 2017 and said good riddance to 2016, it is time for the annual review of the most significant developments in global environmental law during the past year.  Here they are, in no particular order.

1. On November 8, voters in the U.S. elected as president Donald Trump, a candidate who once pledged to abolish the Environmental Protection Agency (EPA) and to “cancel” the Paris climate agreement.  Although his opponent Hilary Clinton received more than 2.8 million more votes than Trump and won the popular vote by a margin of 48% to 46%, Trump carried enough battleground states to win the presidency in the electoral college.  Trump’s nomination of a long-time fierce critic of EPA, Oklahoma attorney general Scott Pruitt, to be EPA Administrator signals that there will be fierce efforts to roll back U.S. environmental regulations.  I have published a piece on the Pruitt nomination in The Conversation, available online at: https://theconversation.com/can-legal-activist-scott-pruitt-undo-clean-air-and-water-protections-as-head-of-epa-70127

2. The Paris Agreement on climate change entered into force on November 4, 2016, 30 days after  it was ratified by at least 55 parties that account for 55% or more of global greenhouse gas emissions.  A total of 120 of the 197 parties to the agreement have now ratified it.  An updated list of the parties and their ratification status is available online at: http://unfccc.int/paris_agreement/items/9444.php  The first Meeting of the Parties to the Paris Convention was held in Marrakech, Morocco in November 2016. 

3.  In October the 28th Conference of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, meeting in Kigali, Rwanda, agreed to a global phase out of hydrofluorocarbons, a potent set of greenhouse gases that also are ozone-depleting substances. It is estimated that these measures alone may slow global warming by as much as 0.5C.  This is a tremendous achievement that is the product of years of meticulous diplomacy. The Montreal Protocol already has been responsible for greater reductions in greenhouse gas emissions than even the Kyoto Protocol.  The new measures will help reduce the impact on climate change of the rapid growth of air conditioning use in developing countries.  Global cooperation on climate change also resulted in the 191 countries in the International Civil Aviation Organization adopting a carbon offsetting scheme for international aviation.

4. Despite new measures to upgrade its environmental laws, China continued to suffer horrendous bouts of air pollution that required the issuance of red alerts, shutting down schools and factories.  India also experienced horrendous episodes of air pollution. Epidemiologists calculated that global deaths from exposure to air pollution now total 5.5 million people per year. This is nearly as many as the 6 million global deaths caused annually from cigarette smoking.  

5. Countries continued to expand the use of specialized environmental courts.  In an update to their 2009 study of environmental courts and tribunals (ECTs), Rock and Kitty Pring found that there are now more than 1,200 green tribunals in 44 countries and 20 additional countries are considering adopting ECTs.  The new study by the Prings for the UN Environment Programme is available online at: http://wedocs.unep.org/bitstream/handle/20.500.11822/10001/environmental-courts-tribunals.pdf?sequence=1&isAllowed=y. There are now more than 500 environmental judges in China and I had the privilege last June of addressing more than 200 of them during a judicial training program in Beijing.

6. Globalization no longer appeared to be an inexorable force.  The volume of global trade was unchanged in the first quarter of 2016 and then declined by 0.8 in the second quarter as trade liberalization efforts came under fire.  Both U.S. presidential candidates rejected the Trans Pacific Partnership and British voters surprised the world by voting to leave the European Union.  A long-time expert in adjudication of trade disputes expressed the view that the heyday of investor-state dispute resolution provisions may have passed.

7. Global pressure to upgrade environmental standards continued, as illustrated by the U.S. Congress overwhelmingly voting to adopt the Frank Lautenberg Chemical Safety for the 21st Century Act in June 2016.  Signed into law by President Obama, the new legislation is the first comprehensive updating of the Toxic Substances Control Act that was adopted in 1976.  Despite legislative gridlock in the U.S. Congress on most environmental issues, the EU’s REACH program and advances in chemical control legislation in other countries made it abundantly clear that the U.S. law needed to be reformed.  

8. The effects of climate change became more apparent as heat records were broken and sea level rise continued.  Global temperatures in 2015 were the highest on record, but the first eleven months of 2016 were even hotter.  See: https://www.ncdc.noaa.gov/sotc/  Sea level rise exacerbated tidal flooding, leading to the discovery in November of an octopus floating in a parking garage in Miami.  Accelerated melting of the Antarctic and Greenland ice caps increased scientific concern over climate change.

9. Efforts to hold multinational corporations accountable for environmental harm caused in developing countries continued with mixed success.  The never-ending litigation against Chevron for oil pollution in Ecuador continued.  Chevron won a big victory when the U.S. Court of Appeals for the Second Circuit upheld a RICO judgment against Ecuadoran plaintiffs and their lawyers, but Canadian courts allowed the plaintiffs to continue efforts to collect against Chevron subsidiaries in that country.  Litigation against Royal Dutch Shell for oil pollution in Nigeria continued in British and Dutch courts.  Efforts to hold multinational corporations accountable for harm caused in developed countries were more successful as Volkswagen reached multi-billion dollar settlements and faced criminal charges for its extensive use of emissions testing defeat devices.

10.  Efforts to improve the capacity of courts to hear environmental cases increased.  A new Global Judicial Institute for the Environment was launched in April at the first World Congress on Environmental Law in Rio, spearheaded by Brazilian Supreme Court Justice Antonio Benjamin, chair of the World Commission on Environmental Law.  The U.S. Supreme Court became more politicized as it intervened in unprecedented fashion to stay EPA’s Clean Power Plan by a 5-4 vote on February 9, four days before anti-environmental Justice Antonin Scalia died suddenly.  In another uprecedented move, the U.S. Senate, controlled by President Obama’s opponents, refused even to consider his nomination of moderate Merrick Garland, chief judge of the D.C. Circuit, to replace Scalia.  As a result, incoming President Donald Trump will nominate a new successor to Scalia and a huge confirmation battle is likely.  New legal theories seeking judicial intervention to combat climate change were tested in court. In November a federal judge in Oregon refused to dismiss a suit claiming that government failure to combat climate change has “so profoundly damaged our home planet” that it threatens “fundamental constitutional rights to life and liberty.” See Juliana v. U.S., online at: https://static1.squarespace.com/static/571d109b04426270152febe0/t/5824e85e6a49638292ddd1c9/1478813795912/Order+MTD.Aiken.pdf 

HAPPY NEW YEAR!